720
FEDERAL REPORTER.
In U. S. v. Boyden, 1 Low. 266, 268, it is said: "The acts set out are no part of tb,e offence and may in themselves be innocent. The purpose of the law is that a mere agreement, however corrupt, shall not be punished as a crime, unless it has led to some overt act; and any form of language which shows that such an act has been done to carry out the agreement is sufficient."
The learned counsel for the defendants read this indictment as if it averred that the defendan.t named agreed to nishand lend to the other parties this skiff for·the unlawful purpose named. And if this were a correct rendering of the language it would not comply with· this statute as interpreted by these authorities; but the language is "furnished and loaned," which necessarily implies, I think, the act of putting the skiff within their control and answers the statute. Whether the act was one tending to effect the ·object of the conspiracy isa question for the jury on the proof. but cer· tainly the pleading is sufficient. Overrule the motion.
SAWYER
v. KELl>QGG.
(Circuit Oourt, D. New Jer,ey. June 1, 1881.) 1. TRADE-MARK-INJUNCTION.
A label, which had been in use in substantially the same form for dozen or more years prior to suit brought, consisted of a blue wrapper, pasted around a small bottle holding bluing, and contained, in separate compartments, various inscriptions in letters of silver bronze. The first compartment contained the general designation of the article, in the words, " Sawyer's Crystal Blue and Safety Box." The other compartments contained, in finer print, commendations of the quality of the article, directions for its use, and the name of the party by whom it was prepared. Held, under the special circum. stances of the case, that the use of a label of the same size, color, and type, and of the same general appearance, with corresponding com. partments, and similar, although not identical, designations, should be enioined.-rED. 8
Bill for Injunction.
SAWYER V. KELLOGG.
721"
Rowland Oox, for complainant. George Putnam Smith, for defendant. Before BRADLEY and NIXON, JJ. BRADLEY, Circuit Justice. This case, with its special circumstances, seems to us to be a very clear one. The com· plainant's label, which he alleges that the defendant has wrongfully imitated, had been in use substantially in the same form for a dozen or more years prior to the bringing of the $uit. It consists of· a blue wrapper, pasted around a small bottle holding the bluing, and containing, in sepa:..· rate compartments, various inscriptions in letters of silver bronze. The first compartment contains the general designation of the article, in the words, "Sawyer's Crystal Blue and Safety Box." The other compartments are in finer print, and contain commendations of the quality of the article, directions for 'use, and the name of the party by whom it was prepared; The label complained of, and admitted to be prepared and used by the defendant, is of the same size, color, and type, and of the same general appearance, as that of the complainant, being divided into compartments corresponding with those in his label. The inscriptions, although not identical, appear very like. The general designation is in these words: "Sawin's Soluble Blue and Pepper Box." Placing the two labels side by side it is easy to distinguish them. But ordinary persons, in the habit of buying the complainant's bottles, would be very easily deceived into buying the defendant's for them, the general appearance being 80 similar in every respect. That the defendant's label 'is>a, designed imitation of ,the complainant's scarcely admits of a doubt. Such perfect similarity could hardly have been the result of chance. We do not mean to say that it would be a. justification if it were accidental. But it is apparent that it was designed. Sawin is not the defendant's name; why, then, did he use Sawin's name and not his own? It was evidently done for the purpose of making a closer imitation of Sawyer's label. The defendant, it is true, alleges that he v;7 ,no. 7-46
'122
does not put up the bluing for himaelf, but for a firm by the name of Barron & Co.· ·who directe{l. him to adopt the label in question. But this is no. excuse for him unless Barron & Co; were entitled to use the label.. The defendant attempts to show that they had such a. title by having hired from Sawin the right to use his name. This pretext is too shallow. It is shown, indeed, that Sawin did manufacture bl uing, and nsed a label of his own, but it was wholly unlike the label in question·. The use of his name by Barron & Co., in the label complained of, was evidently obtained for the purpose of making it more closely resemble Sawyer's. Sawin's bluing had no such re.putation in the community as to make it an object to hire his name. As the label stands it speaks a falsehood. The article covered by it is not "Sawin's Soluble Blue," and it is not "prepared by W. E. Sawin, Jr.," as stated at the foot of the label. It evidently speaks this falsehood for a purpose, and purpose, we are satisfied, is to obtain a closer imitation of Sawyer's label. It is no excuse for the defendant that he does this work for other persons. He is just as guilty as if he did it for himself. All who are concerned in the commission of a tort amenable to the party injured. It is suggested, however, that the label complained of is the same in all respects whioh the: defendaI).t llad used for several. years prior .to its adoption by Barron & Co., with the exception of the Qaption, in whioh Sawin's name has beeu introduoed instead of his own. This only goes to show that: the adoption of Sawin's name was regarde9. as important in carrying out the plan of Barron & Co. The question readily suggestli itself, why did they prefer Sawin's name to Kellogg's in the oaption of the label? . No .st;lffioient reason is shown except that it enabled them more olosely to imitate the oomplainanfs. No doubt Kellogg would have been perfeotly willing, and glad, to have used his own u!tme; and then the label would, .at lealst" have told the truth. It is unneeessary to add that the argument assumes that Kellogg's itself was free from objeetionas an; imitation Qf that of the com-.
WOVEN WIRE MA'lWrRE8S" CO'. V. SIMMONS.
723'
Whether it was so or not may be a question, but one which it is not necessary now to determine. It is further suggested that the complainant has lain by for several years, whilst the defendant ha.s, been p1lblicly using his own !libel, and has thus acquiesced in its use. To this suggestion it may be proper to reply that the complainant had a patent for the, article of bluing, which he was prosecuting and endeavoring to substantiate, but in which he finally failed., His failure to establish his patent (which would have covered all his rights) ought not to preclude him from falling back on his right to the trade-mark. No essensince the termination of the proceed tial delay has ings on the patent.. But, at any rate, an acquiescence in Kellogg's use of his. own label was no acquiescence in his use of the new and altered label having Sawin's name in the caption. We think the case is ,with the complainant, and that a decree should be made ill hisfa.vor. Let a. decree be made accordingly. Nom. Bee so,u1JM'.Y, H(f/'ll, 1 FED. REF. 24.
WOVEN
WIRE
:MATTRESS CO.
v.
SIMMONS
and another.
(OWcuitOourt, E .. D. Wiscon,sin. June 14, 1881.) 1. RE-IssUED tETTE11.S PATENT No. 7,704-IMPROVEMENT IN BEDSTEAD FRAMES.
In re·issued letters patent 7,7()4" granted to the complainant for an improvement in bedstead frames, held, that the first claim, when considered in connection with the specifications, must be construed to means combination of side bars; inclined d6uble end bars, and elastic coiled wire fabric attached only to the end bars, with the end bars of the frame elevated abovA the side bars, so that the fabric will be suspended above the side bars, from end to end, of the frame; and that the second claim, iIi its reference to end bars, must be construed to mean inclined double end bars. As the end bars of defendants' bed bottom are not inclined; and in view of the further fact, to be considered in the same connection, that